Negotiating From Weakness

President Obama’s recent miseries brought to my mind some of my own. 

I am always reminded that Obama is a trained lawyer, which means that he suffers the defect of being able to see both sides of any question. 

It also means that he understands and values the concept of "reasonable" choices, relative victories, and acting in the best interests of the client.

This often means that the result he can manage will satisfy neither his ungrateful client nor quibbling observers. He is stuck in the middle.

Here’s a hypothetical case for you consideration.

Let us say that I am defending a client who is accused of serious crimes. If I lose the case, my client’s maximum exposure is life in prison. There is evidence against him, but I also have arguments that support my client’s position. He asserts his innocence, but he knows that it looks bad and he fears the worst.

I have some choices in negotiating with the prosecution.

First, I can insist on the rightness of my position, demand a dismissal OR ELSE. The or-else is the dreaded jury trial. 

That of course is risky. Which side has more to lose? Even a partial win (acquittal on some counts) will leave my client vulnerable to a long sentence if convicted of other charges. The chances of a total acquittal are slim.

Forty years ago, as a young public defender, I was tempted to force every case to trial. The ethic of the nobility of the "lost cause" was my romantic ideal. I wanted to be Jimmy Stewart in "Mr. Smith Goes To Washington" or Al Pacino in "And Justice For All" (shout at the judge: "You’re out of order!"). Some of my friends acted that way. They gained quick experience at the expense of clients, and burnt out quickly.

Second, I can try for a compromise plea bargain, find a middle ground that might be acceptable for my client and the prosecutor.

This choice leads to others:

I can be aggressive, choose a bottom line punishment and stick to it: one time offer, take it or leave it.

Problem is, if I insist that I will stand fast, what is my or-else threat?

Answer: a jury trial. 

But as I noted, that is risky for my client. What has the DA to lose by a trial?

My second negotiating option is to be conciliatory, concede the strength of his evidence, while still urging my arguments in opposition, pointing out the weaknesses of his evidence and the risks he faces by going to trial, and showing that his goal (what he perceives as justice) can be attained by my suggested compromise.

The simple fact is that I am almost always dealing from a weaker position than the DA.

No matter how the relative strengths of the evidence seem to stack up, the reality is that the scales of justice are always balanced in favor of the prosecution. Ideal principles claim balance in favor of the accused: presumption of innocence, burden of proof beyond a reasonable doubt. But life in the big city belies these ideals. Judges and jurors presume guilt, not innocence of anyone accused. The more serious the crime, the lower the burden on the DA to prove guilt. Jurors fear criminals so much that they twist the old dictum: better to convict ten innocent persons than to let one guilty one go free.

I admit that all of this is contrary to the public perception that sly defense lawyers have the upper hand, that the system is a swinging door designed to apologize to the bad guys. That may happen in the extremely rare celebrity dream team trial, but in the day to day working of our judicial system, the accused is at a distinct disadvantage.

It doesn’t feel good to always be on the defensive, to be conciliatory rather that aggressive. But the defense lawyer’s duty is to act in the best interests of the client, not his own. If that means swallowing hard and making a bitter deal, the best that can be made, so be it.

That is why I sympathize with Obama.  The sniping from all sides, must hurt like hell.

While I Sit On The Sidelines ...

During my forced hiatus from the practice of law, I have tried to keep up with the news that always swirls around the courthouses which have been my milieu for almost forty years. One way to keep up is simply to read the daily newspaper. Today, for instance, three articles referenced cases involving lawyers I’ve known for many years.

The first of these is an article which notes the unusual fact that Los Angeles County, in the past year, has bucked the national trend of reduced death verdicts. In L.A., thirteen death penalties were ordered by juries. This seems to be a statewide trend. California death verdicts have also risen.

The reasons for the data are debated. Steve Cooley, LA DA, thinks it is a partially a fluke, considering the fact that these cases take many years to come to trial. But he did claim that his office has been more "selective" in choosing which cases to pursue, which may account for the higher percentage of death sentences meted out.

My good friend, Robert Schwartz, an experienced defense lawyer, pointed out that jurors have become hardened to mitigation evidence about abused and deprived childhoods of violent criminals. The article also speculates that judges have tightened procedures to encourage more severe verdicts.

I’ve found that there is truth to all of these points. And there is another, that the article doesn’t underline. Jurors are well aware of the fact that California has a moratorium on executions, and has performed ONLY thirteen executions, while almost seven hundred rot on death row. Just as the existence of a credible alternative of ‘life imprisonment without possibility of parole’ has been shown to reduce the number of death verdicts, as was recently reported in Texas of all places, the suspicion that a death verdict will never be enforced is conducive to more of them being issued.

One of the judges who is often cited as having an agenda that includes a preference for death verdicts made the news in another case, non-capital case. Mark Overland, a former public defender, and one of the best lawyers anywhere, is representing Ms. Lazarus, the LAPD officer accused of killing a romantic rival more than twenty years ago. After the pro forma ruling that ordered that she be brought to trial, the judge set bail at $10 million dollars in cash, an extraordinarily high amount, tantamount to a denial of any bail. This is higher, as Overland observed, than the bail set for Phil Spector. The judge justified this act by citing her accessibility to guns, because she is married to a cop, and his subjective belief that she would probably flee the jurisdiction to avoid prosecution.

In another article, a second degee murder conviction is reported. The case, defended by my friend Dave Houchin, had resulted in two mistrials due to hung juries when tried in the Central L.A. courthouse. Once transferred back to the Antelope Valley where the crime occurred and the where extremely vocal victim’s family members lived, a compromise verdict of 2nd degree was achieved after three weeks of deliberation, in a case which relied on circumstantial evidence and the defendant had steadfastly asserted his innocence.

Revenge Of The Lawyers

Having been the butt of so many jokes for so many years, we lawyers are about to get our chance for rehabilitation.

One of Barack Obama's finest attributes is his lawyerly approach to issues. When I hear his speeches, or listen to him debate, I can readily discern the legal training in his analysis and articulation of positions. His responses are coherent arguments, not unlike those made by experienced and skilled lawyers to juries. He neither condescends to nor overestimates his audience.

Though his legal education was apparently serious and thorough, his biography doesn't include trial practice. He was involved in civil rights litigation, taught constitutional law, but I've found no references to any trial experience. Too bad, he would have been a dynamite criminal defense attorney.

To my knowledge, there have only been two previous presidents who have defended in criminal trials. One is John Adams, who defended the British soldiers accused in the "Boston Massacre."

The other was Abraham Lincoln, whose career in a few other respects, bears some similarities to Obama's. Both were from Illinois, both fixated on politics at an early age, both from humble origins - self-made men, both served in the Illinois legislature, both spoke out against a war (Lincoln vocally opposed the Mexican War), neither had administrative experience when elected president, and neither won electoral votes in Texas, Alabama, South Carolina, or Mississippi.

Lincoln, however, had defended in criminal cases. One became famous in his time and contributed to his legend. In May, 1858, he represented William Duff Armstrong, accused of murder during a drunken brawl. An eye witness claimed to identify Armstrong as the killer, having seen him by the light of a full moon at 11 pm.

Accounts of the trial reported in the press and later memoirs and repeated in many Lincoln biographies relate that Lincoln carefully cross-examined the witness, pinning down the details of his testimony. He then persuaded the judge to take judicial notice of the Farmer's Almanac, convincing the judge of its authoritative record of the phases of the moon, proving that there had been no full moon that night, and it had set long before 11 p.m. The jury acquitted on one ballot.

The story was preserved by John Ford in "Young Mr. Lincoln" (1939) with Henry Fonda as the saintly Abe. The screenplay takes some sentimental liberties with the facts; eg: Fonda defends two brothers, and has to protect their mother from a prosecutor who wants her to name the guilty one.

The true client, Armstrong, later served in the Civil War, and was discharged by Lincoln after he received a letter from Armstong's mother informing him that the man whose life he had saved was seriously ill.

Questions at the Bar

I got a letter from the State Bar. This is only a notch below getting one from the IRS in anxiety production.

It turned out to be from the Office of Admissions. A questionnaire asking my opinion of the "moral character" of someone who has applied to the Bar.

As lawyers are an anal-retentive lot, they felt it necessary to define their terms.

"Moral character includes qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the laws ... and respect for the rights of others and for the judicial process."

Although I’ve known this applicant and his family all of his life, I had to think long and hard about these issues. Knowing that he had been an Eagle Scout helped ... not sure if he earned the "fiduciary responsibility" merit badge, though.

Anyway, I checked the box.

That the Bar cares about these qualities in lawyers may come as a shock to anyone familiar with lawyer jokes or movies. You might think the qualifications demanded more realistic qualities:

... dissembling, ruthlessness, deception, backstabbing, greed, ability to parse the law, trampling the rights of individuals as well as the process...

Maybe the questionnaire should be part of a continuing investigation, asked say every year about every lawyer already admitted to practice.

Then I would really sweat the State Bar letters ... more than the ones from the IRS.

Anyway, good luck, Red. (See my other post about this subject.)

The (Attorney - Client) Confidence Game

I haven't posted for a while. Been suffering from shingles. No, I didn't fall off the roof. In between scratching & moaning, I've been reading. Last Sunday, a New York Times article caught me deep into the National Section, at page 22, a typical placement for this kind of trivial headline: "Confession Revealed, Freeing Prisoner of 26 Years."

The situation is very weird. Seems that another guy confessed to the crime to his lawyers, but they didn't reveal the fact in public until their client died. Now they've come forward and disclosed the confession. So the wrong guy was convicted and kept serving time years after someone else confessed to the crime.

So, is this justice? The lawyers for the confessing client had a dilemma. What he told them was in confidence, covered by the attorney-client privilege. A lawyer cannot - must not - under pain of disbarment - disclose such confidential information to anyone without the client's permission. Understanding their obligation as well as the problem this information would lead to, the lawyers wisely prepared affidavits containing the detailed information their client confessed to UNDER SEAL - not to be opened until their client died.

There are cases which say that the confidential communication privilege doesn't survive the death of the client. But there are other cases that say otherwise.

Vince Foster, an official in the Clinton administration, was under investigation as part of the so-called Travelgate scandal. He had hired and consulted with an attorney and was under pressure by Ken Starr, the (so-called) Independent Counsel. Foster committed suicide. Starr then sought to interview Foster's lawyer to find out if Foster or others (read Bill & Hillary) had committed crimes or if Foster's death was homicide.

The Supreme Court eventually upheld the attorney-client privilege. The idea of the privilege, which has existed in the common law for centuries, is to encourage a free flow of truthful information between lawyer and client. If the client thinks that what he tells his lawyer will be disclosed, he will ( shudder) lie to or withhold facts from his lawyer. The Supremes observed that many clients would not want their confidences revealed even after death and that was an interest worth protecting, even if it causes "injustice" or incovenience to the cause of justice.

The privilege is not without exceptions. It is now established that it doesn't cover future violent crimes. If the client tells his lawyer he intends to commit violent crimes, the lawyer has a duty to disclose that. I've always resented this. It kind of discriminates against us criminal lawyers. I mean, clients planning non-ciminal transactions can consult their lawyers. I'm waiting for the client who calls me in whispers: "Hey, Mort, I'm in a bank and I want to rob it. What should I do?"

In reality, contrary to public opinion, most clients do not confess to their lawyers. They confess to the cops, to their homies, to everyone in the jail - but they deny guilt to their lawyers. This is mostly because they fear their lawyers won't fight for them unless they believe in their innocence, not because they fear the lawyer will tell on them.

I have friends who never ask their clients if they're guilty because they don't want to be hampered in their defense. I can't deal with that fantasy. I always grill my clients until they confess to me or at least until I'm pretty well convinced of their guilt. My reason is partly selfish: it's bothersome to defend innocent people - the pressure of losing the case when the client is innocent is too intense. Its comforting to defend guilty people.

PD Blues

I went out to one of the public defender branches to give a brief talk to the lawyers during their lunch hour. It was going to be similar to talks I’ve given other times about trying homicide cases that I call "Squeezing the Lemon."

But while dining on the tuna sandwich before my talk, I was told that the greater problem wasn’t trying murder cases, but rather a reluctance to go to trial on any case, even misdemeanors.

So my talk turned into a pep talk, a task akin to creating enthusiasm in World War I troops to go over the top and face the withering machine gun fire because "it’s fun."

This issue of defense lawyers being "gun shy" about trials is not a new one. Contrary to legend, most defense lawyers are afraid of trials and avoid them. (In fact, it’s also common among civil lawyers, mostly for financial reasons. Settling cases is far more cost effective than the time, expense, and risk of actually going to trial.)

But for public defenders it is an occupational disease that can be fatal. I know, because I was infected by it and went through miserable times fighting the ravages. Cold sweats, mental constipation, nightmares (the most common night terror: in front of the jury and you forgot your notes, your tie, or your pants - that wakes you up in a hurry).

Defending a criminal trial is a test of character, a crucible, a coming-of-age ritual for any who survive it. It forces you to face the chilling fear of failure you’ve felt at every stage since childhood - in school, sports, socially.

You fear you will be exposed for the fraud you always feared you were. Everyone will now know that your claimed confidence, your intellect, your wit, your appeal, were all poses. Underneath, you were and are and always will be ... a loser.

The only way to overcome this disease is, I blush to steal a line from Nike: just do it. You have to steel yourself against all the arguments contra:

The duty to do what is in the best interest of the client means urging acceptance of "the deal" ... the judge will hate you and punish your client for forcing a trial when "the deal" was so sweet... Yada, Yada.

But public defenders have an advantage over other lawyers — you are assigned many more cases, thus have more chances to pick the ones that you want to take to trial.

In the beginning, I lost almost all my trials because I pled out my "winners" — took the good deals, and tried only the "losers" — the cases where the offers were no real bargain because the case for guilt was solid.

That was discouraging. Some lawyers would come back from court time after time with wins. I thought I really stunk. Then I found out that the "winners" were cherry picking cases — trying cases the DA knew were weak just to pad stats and boost their egos.

Others would exaggerate the difficulty of the cases they tried in order to impress peers with their genius. "How’d he win that dog?"

The truth is that public defendering is like baseball. If you bat .300 for your career in the big leagues, you’ll be in the Hall of Fame. If you win as many as 3 of 10 cases as a public defender, you’ll be elected God – or disbarred because you must have cheated.

But every loss is really a win. A win for your next case, a win for you because of what you learned - about people and mostly about yourself.

I lost a trial once for a client who had a 10 page rap sheet full of crimes he’d pled guilty to. After the guilty verdict, the client thanked me. This was rare even when I won, but after a guilty on all counts verdict it was stunning. The client explained: "I copped out every time before. But this time, you fought for me. That made me feel good. Thanks."

So, there’s that. Another valuable lesson. And the DA knew he’d been in a fight, too. The next time the offered deals got just a little bit better.

For a long time, I looked forward to each day. There was always going to be a new "war story" in the lunchroom. The PD Office was a bag of mixed nuts back then, eccentric characters who were good for laughs and life lessons.

They had a swagger that was encouraged by the combative generation of WWII vets who ran the office. Esprit de corps was insured by a paranoid temper of "us against them" and "them" was everybody else. When judges complained to our bosses about "obstructionism" because of refusal to go along with the program, our superiors usually listened politely, then smiled. More than once, I heard superiors complain: "Shit, I was going to move Al out of that judge’s court, but now that she complained about him, I gotta keep him there."

Though the first rule was to defend "individuals," not "causes," there was no great reluctance to use the power we wielded because of the sheer number of cases we had to force the system to do better for our clients. Clogging the courts with trials, putting some judges out of business by "blanket" challenges — we acted together to get our way.

Things gradually changed. The next generation of "managers" were rewarded for being part of the system. They cooperated with reforms, like "EDP"- early disposition programs, that benefitted clients and the system in the short term by apparently generous plea bargains if you settled your case early on.

The lessened strain on the system eventually hurt the rest of our clients because there was no leverage to force better deals. And eventually it hurt those who took the sweet deals because when they came back on their next case, they found they were on probation, had a prior conviction, which along with changes in sentencing laws, meant going to trial now was extremely risky, sometimes impossible. In many cases, even if the defendant was acquitted in the new case, he would be found in violation of probation and punished severely anyway.

Strikes laws handcuff public defenders. You pled a kid to 2 burglaries because the judge gave him probation. Now, he commits a minor felony: say, possession of drugs which would deserve probation. But his record now means his exposure is 25 to life. So when the DA offers to "strike a strike," its hard not to take the deal even though the client now gets 32 months in state prison instead of what the crime rates. Who wants to go to trial on a possession — a one day trial – where the client can get life?

The public defender culture is completely different than it was back in my day. Looking at the faces of the 20 or so lawyers I spoke to at lunch, I didn’t see much of the eccentric self-assurance that used to be the hallmark.

After I overcame my initial terror, I loved being a public defender. After about 10 years, it began to wear on me. When people asked me how I liked it, my standard line was: "I hate my job but I love my work." The distinction was important. A job is something you have to do to earn a living; "work" is your "profession."

The "job" requires swallowing the self-righteousness, hypocrisy, bureaucracy, the corrupt and dishonest system, shaving every day, driving in traffic, paperwork, routine.

The "work" is using your skill and experience to actually "help" some people, to make a difference in some lives, to argue persuasively things you think are right, to "keep the system honest," to speak truth to power, to stop the railroad or at least slow it down, to occasionally win.

The rare "thrill" comes when you win a jury trial (win means getting a better result than you were told to plead to before trial). You talk to the jurors afterward and they thank you for "the experience." The judge grudgingly smiles and compliments you for doing what he thought was impossible. Even the DA, your opponent, may gain respect and forge a lasting friendship that only bloodied combatants can share.

And maybe the biggest kick is the ride in the elevator to the office where you can walk down the hall and shout "NG," take the back pats and dump the file into a box.

Every lawyer I know likes to talk about their trials or other trials they heard or saw or were told about. Those are the vivid memories that keep them alive. Few of the clients who took deals make good stories.

"Squeezing The Lemon": The Holistic Approach

On September 9, I gave a lecture at the 24th Annual Homicide Defense Seminar hosted by the California Public Defenders Association (CPDA) in San Francisco.

At the urging of my son the internet guru, I am posting a version of that lecture here. While my blogging is not usually aimed at criminal defense lawyers and includes observations about a lot more than those that occupy my profession, it is offered here as a glimpse into our little world.

HOMICIDE CASE PREPARATION

I learned more in the lunchroom and halls of the Public Defenders office than I had in 3 years in law school --- by listening to the "war stories" of PD's who became legends in our profession -- Dick Buckley, John Moore (the "Onion Field" lawyer), Bill Littlefield, Paul Fitzgerald, Stu Rappaport, and Charley Gessler, among them.

So Charley comes into the lunchroom with his brown bag and ever present styrofoam coffee. There are the usual winks and snickers around the table. Charley is in the midst of trying a case the press had dubbed "The Skid Row Slasher Case," a brutal series of murders of pathetic homeless people. Rather than pitying Charley for this miserable assignment, the attitude of his peers in the Office is to needle him unmercifully. Like soldiers in battle, these guys are glad he had been chosen to volunteer for this particular hopeliss cause and not them.

"How's it going, Charley," they chuckle, knowing that Charley is being pummeled every day by piles of evidence. Charley chews his sandwich and says earnestly, "I had a good morning session. I think I see an argument on the weapon use allegation in count 26."

The lesson I learned that day was that in the toughest cases --- the real lemons that make us groan when they're dumped on our desks --- our job is to get the best result possible - whether that is walking the client out the door or only striking the use allegation in count 26. The skill of defense lawyers is to squeeze every drop out of the lemon.

And that usually means knowing more about the case than anyone else. That's where "Discovery" comes in. That is the term applied to the process of gaining information in lawsuits.

In 36 years of defending in homicide cases, I've developed some of my own ideas, which I now share in this "lunchroom."

OVERVIEW: “The ANTI-checklist approach”
Lawyers are fond of "checklists" to remind them of the tasks they need to perform. Here's one of them.

• ___ Discovery
• ___ Investigation
• ___ Motions
• ___ Experts
• ___ Negotiations
• ___ Defenses
• ___ Argument

The problem with checklists is that lawyers treat each task as something to be completed, put into a folder, and then ignored.

My approach is more --- excuse the expression --- holistic.
All the tasks are interreleated and continuing, Like grief, discovery is a process, that continues and affects the whole case.

Every murder case is a mystery - not always a thriller, and not always a "whodunnit." It can also be a "whydunnit" or a "howdunnit." But there is always some mystery - a story to unravel.

ASSUMPTIONS
My talk made some basic assumptions. First, most in my audience (of about 250) were public defenders. The most common homicide cases they would be assigned would not be like Agatha Christie novels in which Lord Twit murdered Lady Nitwit with rare poisons in her tea or a movie about a Mafia hitman from the Badabing.

Most homicide case involve the following:
Gang confrontations, the sort of common street encounter that begins with the audacity to look someone in the eye - called "mad-dogging" - an offense that can be fatal.
Impulse killings - triggered by quarrels after simmering passions: lovers, parents, babies, druggies, barflys, crimies - people who know each other - often too well.
Killings during crimes: drug deals gone bad, burglaries, robberies, carjacks. The "felony murder" law says that any death - whether accidental, negligent or intentional - during certain felonies is first degree murder. Others can trigger 2nd degree murders. Misdemeanors can lead to manslaughter or in some cases (like DUI) murder charges.

My lecture was not designed to explain the law. I assumed that my audience knew the law or at least how to find it. The law of homicide cases is the most complex in criminal law, maybe in all of legal scholarship.

It was also not designed to prepare for capital defense, the top of the pyramid of homicide defense. I merely reminded them that the pressure of focusing on penalty issues often blinds lawyers to the reality that the facts of the crime often determine the penalty outcome. Even after a guilty verdict, the jury often votes against a death sentence because of "lingering doubts" about guilt, which might be the result of issues raised very early in the case by the hard work of the "discovery" process.

One of the most important ideas I emphasized was that:
HOMICIDE CASES ARE NOT FOR DILLETANTES

A reporter preparing a series about capital defense lawyers asked me why most were grey haired old men and women. The implication was that we are a dying breed. I ducked the question of 'where is the new generation going to come from' and told the reporter that gray hair (or the absence of any) is needed because it takes a lifetime of experience and survival to be the best at it. You don't spring from the shell knowing how to do it well and you have to be dedicated and make sacrifices of time, energy and stress.

Analogizing the legal profession to medicine, a lawyer doing a civil case or a DUI is like a dermatologist, while a capital murder case is brain surgery.

HOMICIDE DISCOVERY IS DIFFERENT
I mentioned this lecture to a judge who was a former DA and he said, "How is it different?" He was trying to impress me with how scrupulous and ethical he perceived himself to have been - and to be honest, this guy was - but not all DA's are.

The trend is to "hide the ball." Emboldened by appellate neglect, defense laziness, the impulse to win the big ones, many prosecutors and police agencies give up the goods grudgingly, if at all.

Prosceutors are torn between their ethics and their ambition. DA's often are involved in the investigation and continue their work until their target is dead. Homicide detectives view themselves as a breed apart. They act like stars with presence, stalking crime scenes and courtrooms with their "187" belt buckles and western boots.

The pressures include the publicity that often swirls around murder cases, true regard for families of the deceased, the implications for the community.

These cases are complicated, generate reams of paper (now also filling CD's). The facts are dispersed among many official and private sources of information. Unearthing them requires knowing what to look for and where. It requires subtlety, experience, and imagination.

My lecture included a startling revelation that runs counter to popular belief:
LAWYERS ARE PEOPLE TOO.

In law school we were trained (brainwashed) to "think like a lawyer." This was meant to force an orderly and rational approach to legal problems - find the facts and the inferences, spot the issues in the case, determine the applicable law.

But homicide cases are unique in popular culture. The subject of murder is so pervasive that everybody thinks they know something about it. Everybody's heard about "malice aforethought," "self-defense," "alibi."

The judge is going to give the jury a set of complicated legal instructions to give them some legal education. They're not going to be able to do it.

What's a juror going to make of the difference between 1st and 2nd degree murder? What's the difference between "premeditation" and "express malice"? A manslaughter means "intent to kill" but no "malice aforethought"? How can manslaughter be "involuntary? How can self-defense consider "fear" but not "anger"? Who is this imaginary "reasonable person"?

What are they going to think about the "victim," the witnesses, your client.

Every defense lawyer gets a chill that moment when the jury panel crowds the courtroom and the judge reads the charges for the first time. "The defendant is charged with murder." You feel those hundreds of eyes bore into your back. What are they thinking at moment?

Our skill is to translate "legal" into English for the people who are going to decide our client's fate. We have to learn to think like jurors, not lawyers.

Wrapped in the legalisms and procedures, we must not forget what jurors can't forget: somebody died and your client probably did it.

FOR THE DOCTOR WANNABE
Another cool thing about homicide cases is that they will make your parents and loved ones, for once, proud because you can finally be that doctor or scientist they always wanted you to be, instead of the career you foolishly chose. At the very least, you can impress your friends by knowingly complaining about the defects in "CSI: MIAMI."

You are going to become expert it any or all of these sexy fields:
weapons, medicine, DNA, bodily fluids - blood, semen, criminalistics - ballistics, fingerprints, psychology and all forms of perverse behavior.

Discovery is part of the process that allows you to become an expert, which you need in order to create credibility with the jury so that they will listen to the points you raise on cross-examination, with your own witnesses, and to your argument. Discovery is your continuing education essential to your preparation.

Discovery comes from many sources. The first is from your opponent, the DA, who as noted, is your adversary, the advocate for The People.

DISCOVERY – From DA: INFORMAL FORMAL DISCOVERY
To insure that the DA will be forthcoming, you have to establish an "attitude" at the start and consistently apply it throughout the case. You will appeal to the DA's sense of ethics about his noble profession:

“THE DUTY OF THE DISTRICT ATTORNEY IS NOT MERELY THAT OF AN ADVOCATE.HIS DUTY IS NOT TO OBTAIN CONVICTIONS, BUT TO FULLY AND FAIRLY PRESENT THE EVIDENCE.” PEOPLE V. KASIM (1997) 56 CAL.APP.4^TH 1360, AT 1378.

BUT you're going to appeal to his (her) ambition, by citing the many cases excoriating prosecutors for misconduct when they concealed evidence. You're going to remind him that the law requies disclosure, even without request, of "relevant exculpatory evidence" and that he can't hide behind a policy of "don't ask, don't tell" when it comes to what the police know that they haven't told him.

The 6th and 14th Amendments make discovery a constitutional right of the defense and no state laws are needed to enforce it. California, like most other states and the feds, have statutes governing discovery.

The truth is that most of these laws are designed to do two things. First, they are aimed helping prosecutors to "discover" the defense case. For most of our history, the 5th Amendment protected the defense against the need to disclose its case to the prosecution. The People have the burden of proving guilt without assistance from the defense, and discovery to the prosecution was recognized as "lightening the burden."

As the Supreme Court escaped the Golden Age of Enlightenment, however, talk began about discovery being "a two way street." Alibi statutes were passed and upheld, requiring the defense to disclose witnesses and what they were going to testify to so the prosecution could be prepared to rebut it at the trial. The rules were then extended to all defense witnesses.

Sounds fair, but it poses a dilemma for defense lawyers and fairness. Your witnesses and other evidence that you gather may provide a defense, but may also contain harmful evidence. Suppose, for e.g., that the DA's case placing your client at the scene of a crime is weak - questionable ID's. You uncover witnesses who put your client at the scene, but say he acted in self-defense. If you give this to the DA, can they use your witness to bolster their case, while attacking the self-defense idea?

This dilemma is a subject for a lecture series and much debate among defense lawyers. Most of the issues have not been resolved, and my present lecture merely touched on some of them.

The second goal of new statutes was to streamline the discovery process by reducing the judge's involvement. Informal discovery between the parties was urged, detailing what is and is not discoverable, defining the parameters, and sanctions for non-compliance.

In California, the law is in Penal Code Section 1054, et. seq.
My strategy is to take advantage of what the law gives by making informal discovery as formal as possible. I prepare detailed informal discovery letters requesting every possible item that they (or any member of the prosecution "team") might have, insist on a certain date for compliance, and file a copy with the court. I follow up the letters with more letters as the case progresses, referring to my previous requests and their degree of diligence in responding so that a record is kept in the official file.

This reinforces the "attitude" of dogged determination that encourages the DA to give up the goods. I provided my audience with several samples of letters I used in past cases.

KEEP A LOG
Some years ago I was appointed to defend in a case involving 10 murders, 7 defendants, thousands of pages of documents, photos, recordings of interviews, many police agencies. I had to keep a log of the reams of discovery because the trial was going to take 8 months to complete. The "table" function of my computer's word processing program generated lists of material which I sorted by number, date, charge, and could retrieve by the name of witness, subject, crime, expert, defendant, etc.

SOME AREAS OF DISCOVERY FROM DA
I gave samples of some of the areas of discovery obtainable from the DA, mostly about the deceased and their prospective witnesses.
They include the seemingly obvious: names, addresses, but sometimes the DA wants to conceal even this most elemental information. Witnesses, especially in gang cases, may be in danger.

I need the information and have a right to it, so I scrupulously follow the law's demand that I keep the information from my client.

I do that in my client's interests. There is no more powerful evidence of guilt than attempting to intimidate opposing witnesses. I don't need that kind of help from my client, his family or friends.

Facts about witnesses you need to get include statements, their gang affiliation, whether they are informers who've been offered or requested inducements to testify. Do they have pending cases, recent arrests, probation or parole or immigration problems that motivate their "cooperation"?

PRIORS
You need to know details about their criminal history. The law entitles you to impeach the believability of a witness by telling a jury about crimes of moral turpitude, those that relate to honesty, but you need to know more.

A deceased's propensity for violence or substance use can affect a self-defense issue. Confronting a known gangster or meth freak can trigger a reasonable reaction of violence.

The holistic approach means that discovery of these facts will lead to investigation, consultation with experts, and then lead to further need for discovery.

INVESTIGATION & DISCOVERY & INVESTIGATION
Crim Law 101 demands viewing the crime scene. That's basic, but even more crucial in homicides. "The 'hood" is where the everything can be found. The street tells you whether the identification of your client in a drive-by was accurate. Word on the street will tell you more about who the supposed victim was, who else hated him and the same about the witnesses who fingered your client.

Was he a snitch? A drug dealer? Did he owe money to a dealer? Was he a liar? Is there a spurned lover who knows the real story?

DISCOVERY FROM POLICE AGENCIES
By now, everyone knows the basics of CSI.
Typically, when a violent crime is called in, uniformed cops show up. They do a preliminary investigation and prepare a report. They find a body, set up a crime scene, call paramedics, and try to identify potential suspects, witnesses.

Eventually the homicide detectives are called. They direct the collection of evidence, measurements, photos, diagrams.

We've all seen the elements of the mystery: the cop tells the detective, "I canvassed the neighbors. Nobody saw or heard anything." "Of course." What can you expect in this part of town? They generate Field Identification (FI) cards or notes. Name, address, "saw nothing."

But what they didn't tell the cops, they might tell your investigator, maybe with assistance from your client's family member who knows the 'hood, speaks the language, and isn't a cop. It may take time as word on the street permeates about the "who" and "why" of it. People may disappear and re-appear weeks or months or even years later, who know the truth and are willing to talk to you.

The homicide cop has his sources, too. Informers and other cops, other agencies who get the word, or at least a version of it. They have gang experts, narc units, vice, specialists in ethnic groups. They will search for patterns, histories - other shootings in the area, motives, retaliation for grudges, enemies. People who die violently have often caused violence to others, many others.

ABANDONED SUSPECTS
Before they focused on your client, they may have traced other lead that they abandoned when your client came up. Then, typically, they stopped going down these other roads.

That's a defect in the police investigation system. Once they gather enough evidence to convince them that they have PC to arrest, they usually stop looking for others.

But your job may be to keep at it, do their job for them, and show what the law delicately calls, 3rd Party Culpability.

DISCOVERY FROM OTHER SOURCES
Other quasi-independent agencies, not labeled as "police," are always involved and their work needs to be discovered, often by subpoena of records and follow up with face to face interviews.
They include the EMT (or Paramedics), which are often employees of the Fire Department. They come to the scene to aid and transport victims.

I gave the audience an example of a case I had. Two Hispanic men leave a store carrying bags. They are confronted by a man who runs up to them shouting something while pulling a shotgun from his sleeve. As he nears them, the gun goes off, killing one. The police report says that while the victim was being transported to the hospital, he told the detective that it was a robbery. A "dying declaration." That makes it 1st degree murder.

Discovery and investigation led me to interview the EMT worker who told me that the victim understood only Spanish and said that the assailant spoke only English. It was the victim's conclusion that it was a robbery, and the judge dismissed the felony-murder charge, reducing it to manslaughter.

MEDICAL EXAMINER
The coroner does an autopsy, determining cause of death and prepares a report with photos of his findings. Interviewing the doctor is essential. Separate speculation from science, eliminate prejudicial information that can disgust a jury.

For a self-defense case, you need to know lots about the deceased. His tattoos, his scars, his size, and the toxicology report of what was in his system: drugs and alcohol level.
A psycho-pharmacologist will interpret the behavioral effects - perception, propensity for violence, irrational behavior that provoked an assault.

And you better see ALL the photos before the jury does.

911 TAPE
Often more than one person calls in. What descriptions were given, how to they vary, when were they made.

CRIME LABS
Many jurisdictions farm out their forensic work and the degree of expertise varies widely. Notes, tests, protocols, c.v.'s can make the difference for your own experts to rebut.

CELL PHONE RECORDS
With cell phones more prevalent, another source of critical data is available. Records can establish not only when a call was made, but also from where it was made. Records include the location of the nearest cell and can buttress an alibi if your client made a call at the time of the crime from a location too far away to put him at the scene.

HOSPITAL RECORDS
When the victim arrives, he is attended by nurses, aides, ER docs, and others who generate notes, reports of exams, tests, drugs, procedures, interviews, conclusions.

In one case, my client was charged with murder of his girl friend's infant. She told police she had left the house briefly and returned to find the baby dead and her boyfriend drunk. The cause of death was "Shaken Baby Syndrome."

I dug out hospital records, not just of the night the baby died, but previous visits and those led to other hospitals to which the mother had brought the child, many times since its birth, most long before my client had been around.

I shared the records with the DA on the case, who later dismissed the case, after recognizing that the mother was suffering from (or guilty of) "Munchausen Syndrome By Proxy." She had caused the injuries to her child in order to get attention and assuage her need to fabricate her own victimization.

GANG BOOK
Every police agency keeps this data about gangs in their area, including photos, monikers, rap sheets. Your client may be the "Mousey" who did it, but there may be 5 other guys who fit that description. Gangsters aren't very original.

UNOFFICIAL SOURCES FOR DISCOVERY
AUTO LINE-UPS
Car manufacturers and dealers can provide sales figures and descriptions of similar vehicles that more closely fit than the one your client was caught in.

STREET MAINTAINANCE
Records of the lighting, trees, pavements, graffiti removal, construction can make a difference in identification.

THE TROUBLE WITH CO-DEFENDANTS ... AND THEIR LAWYERS
Among the hundreds of decisions you have to make are the many that arise when there are other defendants. Do you want to share discovery and or investigation? Present a joint defense?

You are going to consider many theories. Is there one shooter and one accessory? What about the "conspiracy" law, which makes any participant equally guilty? Do you want a joint trial or a severance. Which defendant made statements implicating the others? Are any going to testify?

I know of one case in which there were 4 defendants accused in a drive by killing. There had been 2 cars and shots came from only one of them. Each lawyer tried to prove that his client was in the other car, allowing the DA to discount all of the defenses --- "apparently the shots came from an empty car!" All 4 were convicted.

You have to identify which defendant is likely to "roll over" on the others, accept a deal to testify. That means more discovery and investigation.

THE TROUBLE WITH CLIENTS
The question I am most often asked by laymen is "How can you defend someone if they confess their guilt to you"? The fact is that most clients confess to everyone BUT their lawyer. They think you won't fight for them if they confess to you.

Instead, they talk to the police, to their friends, their jail mates, their co-defendants. They whisper on buses, over monitored phones, in the presence of bailiffs, in lock-ups.

Given any chance to make incriminating statements they will do it, even if they really are not guilty. Even the innocent feels compelled to "help" his case by setting up a false alibi - in a letter or phone call to his wife or homie from jail.

The worst feeling is to be suddenly confronted in the middle of trial with a tape of your client's latest statement in conversation during lunch.

You must make a motion to keep him away from co-defendants at all times. You need to make continuing discovery demands for any statements.

Without thorough discovery you can't make one of your most critical decisions: whether your client can testify. If you can, it may be a great advantage - though risky. A client with a good family, good character witnesses, employers, ministers, can win a case.

But you need to prepare: does he have any blemishes that can destroy his credibility?

FINALLY, TWO RULES TO REMEMBER:

ONE: HFTB BUT PFTB: Hope For The Best BUT Prepare For The Worst.

TWO: Good old Borenstein's Law. If you have forgetten, it is the Universal Law that seeks to explain many common phenomena, including why our clients cause trouble.

In essence, it is this: EXPECT YOUR CLIENT TO ACT AGAINST HIS BEST INTERESTS.
The reasons they do so is explained elsewhere in great detail in my post titled Intro to Borenstein's Law. Suffice to say that they wouldn't be your client if it wasn't true.